Wellington Elster, Respondent, v. Miles D. Goodyear, John J. Viele and Charles L. Viele, Appellants

Wellington Elster, Respondent, v. Miles D. Goodyear, John J. Viele and Charles L. Viele, Appellants. Appeal—the County Court cannot add another party to those against whom, a judgment was rendered in the Justice’s Court. Where a judgment rendered in a Justice’s Court in favor of the plaintiff, in an action against several joint contractors, is not entered against one of the joint contractors who was not served, the County Court has no power, under section 3063 of the Code of Civil Procedure,-upon an appeal purporting to have been, taken by all of the defendants, to amend the j udgment by making it run against the defendant who was not served, as well as- against the other defendants.-. Appeal by the defendants, Miles D. Goodyear and others, from a judgment of the County Court of the county of Cortland in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 23d day of October, 1899, affirming, as modified, a judgment of a justice of - the peace in favor of the plaintiff for the sum of about forty-one dollars and costs. The action was-brought by plaintiff to recover for services rendered the defendants in the construction of the Peck Memorial Building at Marathon, N. Y., in the years 1894 and 1895. The defendants were joint contractors for the construction of said building. The defendant Goodyear was not served. The defense interposed by defendants Yiele was that the plaintiff’s contract was made with one Lewis Yiele and not with the defendants. Upon that issue the plaintiff was successful and judgment was entered in his favor against the defendants Yiele. From that judgment the defendants appealed to the County Court. The County Court amended that judgment by making it in form against the defendant Goodyear as well, as against the defendants Yiele, and, as thus amended, the judgment was affirmed. From this judgment of the County Court an appeal has been taken to this court. ■ William D. Tuttle, for the appellants. Bouton & Champlin, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: The failure to enter the judgment against Goodyear as well as against the Vieles seems to have been an error which was substantial. (Nelson v. Bostwick, 5 Hill, 41; Code Civ. Proc. § 3020.) This was recognized as error by the learned county judge who directed this judgment. But he sought to avoid the same by amending the judgment so as to make it in form against Goodyear as well as against the defendants Viele. For this action of the County Court we can find no authority. By section 3063 of the Code of Civil Procedure the County Court has authority to affirm or reverse the judgment in whole or in part and as to any or all of the parties. Ho authority, however, is anywhere conferred to modify the judgment or to make perfect by amendment a judgment which below was imperfect. The respondent seeks to justify the judgment of the County Court upon the ground that the notice of appeal purports to have been taken by all of the defendants. But that notice must be read in connection with the judgment from which the appeal is taken, and, inasmuch as that judgment is fairly identified by the notice of appeal, it will be deemed to have been taken simply in behalf of those against whom the judgment was entered. However, even if Goodyear had himself appealed from the judgment, it could not estop the defendants Viele from questioning the judgment which was prejudicial to them, nor, in our judgment, could it give the right to the County Court to exercise an authority in amending the judgment which is not found in the statute. We see no alternative, therefore, other than to reverse the judgment of the County Court and also that of the Justice’s Court. All concurred. Judgment of the County Court and of Justice’s Court reversed, with costs in both courts. '